The mouse exclusion

About this time last year I wrote a post making fabulous (and ridiculously amusing) predictions about the state of publishing for the next fifty years. One of those predictions was a dramatic increase in the quality and variety of books available for free as a result of expired copyright.

Copyright law is one of those topics that I find it hard to stay away from when I hear it discussed. It’s often misunderstood, incorrectly interpreted, and / or taken for granted, but one part of the debate more likely to prompt me to get my trolling hat on than any other is expiry. Every now and again I’ll hear of creators and consumers complaining about the duration that copyright subsists after the death of the author, typically citing a certain American purveyor of theme parks and animated features as aggressively lobbying to get further extensions to protect their commercial interests (ie, their exclusive rights to use the Mouse and his friends). Those people are wrong.

And not “in my opinion they are wrong,” or “I can see where they’re coming from, but I personally don’t agree”. They’re just wrong.

You see, the people who support early expiry, no extensions to expiry, or even the concept of copyright expiry at all, are complicit in class distinction and discrimination against art and artists. If your great grandfather had the good sense to set up a business and then dies, he is perfectly entitled to have his descendants enjoy the inheritance generation after generation. Hell, if your great grandfather established a business that made him rich by bootlegging alcohol during prohibition (and we all know how nice and fluffy the guys that did that were), you get to keep it.

I’m not advocating some sort of communistic redistribution of wealth (I’m a capitalist and proud). I’m simply asking why we treat the results of creative endeavours differently from business endeavours or physical ones. Why is a work of art protected less than a work of bricks or business? Why is the son of a writer considered less worthy than the daughter of a hotel magnate?

Copyright, designed to help artists, needs to be distinguished from other areas of Intellectual Property law, particularly patents, where there is indeed a solid economic and public interest argument for having expiry. Patents, which are designed to encourage research and development efforts to create new technology, have a relatively short expiry time (20 years from filing date, in most cases). That’s sufficient time to recover investment in R&D and short enough to mean that technology evolves for the good of humankind instead of being restricted in perpetuity in a State-sponsored monopoly. This same concern doesn’t apply to artistic works; a subsisting copyright in a film, a character, a book, or a song doesn’t restrict the creativity of others, nor does it stop people being inspired by the art’s ideas or style. All it means is that the person who controls the legacy is the person the creator wanted… instead of any or every publishing house that would rather repackage a free book than take on a new artist and pay them an appropriate amount. You can’t argue that the likes of Dickens and Austen are only read today because they are freely available; people are still happy to pay for those books, and the only reason they were around long enough to make it to the public domain is because they were good enough to make it on their own. As for the others, the appropriate method of preserving artistic works for public record is through libraries, not through provisions designed to give more money to publishers at the expense of the artist’s estate.

There are those that argue that Walt himself used a lot of public domain stories in his early days (see Cinderella, and <shudders> Cinderella 2), but that just emphasises the point that copyright expiry encourages copying not creativity.  Without that option, Walt would either have come up with his own creations (like Mickey) or simply negotiated the rights at fair value from the copyright owner (as he did with Mary Poppins). Public domain leads to works like Pride and Prejudice and Zombies, and, if there’s no change to copyright law in the next few years, to DVDs of Mickey and Minnie Mouse in… well, who the hell knows, but I suspect you wouldn’t want your daughter to stumble across it in HMV.

So what is a sensible outcome? What should happen to works that, despite all reasonable attempts to identify a suitable individual, don’t seem to have a copyright holder anymore? I agree it doesn’t make sense to have those books lost when there is a publisher willing to give a work a second (third, ninth) life. Perhaps the answer is some arrangement where these ‘lost’ works provided for free (e.g. via Project Gutenburg) can continue to be freely available, but that anyone looking to use such a work in a commercial way (i.e. charge) has to provide an author’s contribution to a charitable grant to support the arts (and struggling artists).

And to end, what do I say to answer those people who say “But I don’t even want my great grandchildren to have it so they can flitter the royalties away on booze”? The good thing about copyright is that you can waive it at any time (or better yet do a JM Barrie and bequeath it to something like the Great Ormond Street Hospital for sick children). But if you want to throw away your possessions and burn your hotels rather than leave them to your descendants, just do it to your own will you? Don’t ask me to burn mine.